Elwood v Pioneer Concrete (WA) Pty Ltd

[2002] WASC 32 (S)

ELWOOD -v- PIONEER CONCRETE (WA) PTY LTD & ANOR [2002] WASC 32 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASC 32 (S)
Case No:	CIV:2181/2001	Heard:	12 DECEMBER 2001
Coram:	MASTER SANDERSON	Delivered:	7/03/02
Supplementary Delivered:	22/03/02
No of pages:	6	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
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Parties:	ANTONY JOHN ELWOOD PIONEER CONCRETE (WA) PTY LTD (ACN 008 689 781) THE MINISTER FOR THE ENVIRONMENT AND HERITAGE
Catchwords:	Practice and procedure Supplementary reason for judgment Turns on own facts
Legislation:	Environmental Protection Act 1986, s 47(1)
Case References:	Chapman v Luminis Pty Ltd (No 5) (2001) FCA 1106 Onus & Anor v Alcoa of Australia Ltd (1981) 149 CLR 27 Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : ELWOOD -v- PIONEER CONCRETE (WA) PTY LTD & ANOR [2002] WASC 32 (S) CORAM : MASTER SANDERSON HEARD : 12 DECEMBER 2001 DELIVERED : 7 MARCH 2002 SUPPLEMENTARY
DECISION : 22 MARCH 2002 FILE NO/S : CIV 2181 of 2001 BETWEEN : ANTONY JOHN ELWOOD

Plaintiff

AND

PIONEER CONCRETE (WA) PTY LTD (ACN 008 689 781)
First Defendant

THE MINISTER FOR THE ENVIRONMENT AND HERITAGE
Second Defendant

Catchwords:

Practice and procedure - Supplementary reason for judgment - Turns on own facts

Legislation:

Environmental Protection Act 1986, s 47(1)

(Page 2)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff : Mr T J Carmady
First Defendant : Mr C P Stevenson & Mr B D Wylynko
Second Defendant : Mr C P Stevenson & Mr B D Wylynko

Solicitors:

Plaintiff : Williams & Hughes
First Defendant : Mallesons Stephen Jaques
Second Defendant : Mallesons Stephen Jaques

Case(s) referred to in judgment(s):

Chapman v Luminis Pty Ltd (No 5) (2001) FCA 1106
Onus & Anor v Alcoa of Australia Ltd (1981) 149 CLR 27
Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397

Case(s) also cited:

Nil

(Page 3)

1 MASTER SANDERSON: On 7 March I published reasons and dismissed the first defendant's application to strike out the plaintiff's amended statement of claim. Subsequent to publication of those reasons the first defendant drew my attention to complaints it had made to par 10 and par 11 of the statement of claim in which, it said, had not been directly addressed in the reasons. I accept that I dealt only obliquely with this issue in the reasons (at par 11 and par 12) and these supplementary reasons are designed to deal directly with the issue raised by the second defendant.

2 Paragraph 10 and par 11 of the statement to claim read as follows:

"9 Legislation will demonstrate an intention to protect or benefit a particular class of persons if the nature, scope and terms of the statute, including the nature of the evil against which the statute is directed, the nature of the conduct prescribed, the pre-existing state of the law, and generally the range of circumstances relevant upon a question of statutory interpretation evidence the intention to protect or benefit a particular class of persons: Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 at 405; Chapman v Luminis Pty Ltd (No 5) [2001] FCA 1106 at para 683.

10 On its proper construction there is no intention that s 47(1) of the Environmental Protection Act 1986 is to protect or benefit a particular class of persons rather than the public at large."

3 The second defendant says that s 47(1) does not, on its proper interpretation, confer on the plaintiff a right to proceed for breach of statutory duty. That being the case, it is said that the two paragraphs cannot stand.

4 Section 47(1) of the Environmental Protection Act is in the following terms:

"A proponent on whom a statement has been served under section 45(5) and who does not ensure that any implementation of the proposal to which the statement relates is carried out in accordance with any conditions and procedures set out in the statement commits an offence."

(Page 4)

5 The first defendant admits, at least for the purposes of the strike-out application, that the Environmental Protection Act imposes a statutory duty on the first defendant. However, it is said that the section does not provide a private right of action for breach of the subsection. It is said that an implicit private right of action for breach of statutory duty exists when either the legislation demonstrates an intention that the statutory duty is to protect or benefit a particular class of persons, as well as protect or benefit the public generally, or when the statutory duty reflects an underlying common law cause of action. A number of cases were cited to support these propositions, including, and perhaps most importantly, Chapman v Luminis Pty Ltd (No 5) (2001) FCA 1106 and Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 per Kitto J at 405.

6 I think the answer to the second defendant's complaint lies in examination of the ratio in Onus & Anor v Alcoa of Australia Ltd (1981) 149 CLR 27. The facts of that case, as taken from the headnote, were as follows:

"Section 21 of the Archaeological and Aboriginal Relics Preservation Act 1972 (Vict) provided that a person who wilfully or negligently defaced or damaged or otherwise interfered with the relic or carried out an act likely to endanger a relic should be guilty of an offence. The terms 'archaeological relic' and 'relic' were defined by s 2 to include a relic pertaining to the past occupation by the Aboriginal people of any part of Australia, whether or not the relic existed prior to the occupation of that part of Australia by people of European descent, and without affecting the generality of the foregoing, included any Aboriginal deposit, carving, drawing, skeletal remains and anything belonging to the total body of material relating to that past Aboriginal occupation of Australia, but not a body or remains of a body interred in a cemetery, burial ground or place of burial after the year 1834, or a handiwork made for the purposes of sale.

Persons who claim to be descendants and members of the Gournditch-jmara aboriginal people and custodians of the relics of those people according to their laws and customs which relics were of cultural and spiritual importance to them, held to have standing to commence an action to restrain another citizen from contravening s 21 of the Archaeological and Aboriginal Relics Preservation Act 1972."

(Page 5)

7 It can be seen immediately that s 21 of the Act was designed to protect the cultural heritage of the Australian nation, not just of particular Aboriginal people. However, it is also clear that Aboriginal people who were direct descendants of those people who previously occupied the land, had a heightened interest in the protection of the relics. In the same way the plaintiff, whose land is adjacent to the Red Hill Quarry, has a heightened interest in protecting the environment and ensuring that the conditions accompanying the approval given by the first defendant were met.

8 All members of the High Court in Onus were satisfied that the plaintiffs had standing to bring an action. Brennan J stated the principle in this way (at 73):

"A special interest in the subject matter of an action being neither a legal nor equitable right, nor a proprietary or pecuniary interest, will ordinarily be found to arise from modern legislation enacted to protect or enhance non-material interests - interests in the environment, in historical heritage, in culture. Where such a statute imposes a public duty to protect or enhance a non-material interest a breach of the duty is apt to affect a non-material interest, and it would be vain to search for a proprietary or pecuniary damage suffered by a plaintiff. A plaintiff in such a case, though he may be able to show a special interest in what the statute seeks to protect or enhance, would be unable to show a private right or to prove that he has suffered proprietary or pecuniary damage. To deny standing would deny to an important category of modern public statutory duties an effective procedure for curial enforcement."

9 That, I think, deals with the second defendant's complaint. Moreover, it is worth noting that Gibbs CJ, in his judgment, doubted the wisdom of attempting to make a determination as to standing at an early stage of the proceedings. His Honour said (at 38):

"It is unfortunate that the question of the appellant's standing was determined as a preliminary issue in the present case, particularly on such scanty material. To say that is of course, no criticism of the learned primary judge who had to deal with Alcoa's application. The question whether a plaintiff has standing to bring an action is one that logically arises before the question whether he is entitled to succeed in the action. However, as I pointed out in Robinson v West Australian

(Page 6)

Museum, the court has a discretion whether or not it should determine the question whether the plaintiff has a sufficient interest to bring the proceedings before it proceeds to determine the merits of the case."

10 In my view, it is appropriate in this matter to allow the pleading to stand and to allow the plaintiff to raise the question of a breach of statutory duty at trial.